President Obama’s US Department of Justice (DOJ) recently filed a legal brief in support of damages sought by an affiliate of the Recording Industry Association of America (RIAA), prompting some observers to speculate on the Obama administration’s impartiality in the RIAA’s file-sharing litigation campaign.

In Sony BMG Music Entertainment v. Tenenbaum, the DOJ filed a motion “for intervention and brief” in support of the US Copyright Act’s statutory damages provision that it says mandates penalties of up to $150,000 for mp3 files illegally downloaded or distributed. After filing a similar brief in support of the RIAA’s litigation last year in Sony BMG Music Entertainment vs. Cloud in Pennsylvania, the DOJ says its brief in Tenenbaum supports the constitutionality of the statute’s damages provisions in several ways.

The DOJ maintains that under case law, Tenenbaum is liable under the full-scope of damages the statue outlines, even though the defendant Joel Tenenbaum did not seek commercial gain through his file sharing and downloading. The DOJ also wrote that the total of the damages does not violate the Eighth Amendment’s Excessive Fines Clause, which the DOJ noted only applies to civil cases when the “ the case is brought by the United States or the United States has a right to receive a share of the damages awarded.”

In its brief, the DOJ also referred to the US Congress’ intentions when it passed an amendment to the statute in 1999 in reference to the internet that specified damages under the Copyright Act of amendment of “$750 and $30,000 per infringed work, with a maximum of $150,000 for a wilful violation.”

“Many computer users are either ignorant that copyright laws apply to internet activity, or they simply believe that they will not be caught or prosecuted for their conduct,” Congress officials wrote. “Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action.”

The briefs that the DOJ filed came as a surprise to some observers who thought President Obama’s administration might seek legislative measures instead that would change existing copyright enforcement statutes that some critics say mandate overly extensive damages for media file distribution and downloading. Critics have noted that lawyers representing the RIAA were recently appointed to the DOJ, including Tom Perrelli, the DOJ’s associate attorney general who ranks third in the department, and Donald Verrilli, associate deputy attorney general.

Last week, a group of consumer rights associations and library groups, including the Electronic Frontier Foundation (EFF), American Library Association, and Entertainment Consumers Association sent President Obama an open letter in which they asked for “diversity of stakeholders affected by IP policy” to be taken into consideration by administration offices.

Without mentioning former RIAA lawyers Perrelli and Verrilli by name, the letter noted that “two of the most senior officials in the DOJ represented the recording industry in litigation for many years.”

“The fact that these individuals were litigators rather than registered lobbyists does not diminish the possibility that they may be inclined favourably towards the positions of the industries they long represented,” the letter said. “Recent developments like the Justice Department’s intervention in Sony BMG v. Tenenbaum in favour of the plaintiff record label heighten these concerns.”

Meanwhile, some RIAA critics are challenging the constitutionality of the damages Sony seeks in the Tenenbaum case. Ray Beckerman, an internet law attorney who has represented defendants that RIAA and affiliates have sued, wrote to Intellectual Property Watch in an email response that the DOJ’s brief made arguments about constitutional law that he argued would not hold up in court.

“[The brief’s] position that the entire range of statutory damages is constitutional was an unnecessary, preposterous, and legally indefensible, position, and was not supported by any legal authority to that effect,” Beckerman said. “There is not a court in the land which would agree that copyright act statutory damages of 2,100 to 425,000 times the actual damages sustained pass constitutional muster.”

However, Beckerman said the DOJ’s brief had “some correct statements in it.”
The correct statements Beckerman cite were “concessions that statutory damages are subject to due process review for excessiveness and request that courts seek to avoid reaching constitutional question by ruling only after a trial.”

The RIAA applauded the action that the DOJ took in the brief. “It’s consistent with the position of every recent administration on this issue and we are pleased that DOJ has weighed in,” Cara Duckworth, a spokeswoman for the RIAA, said in an email response.

Beckerman agreed that Obama’s DOJ has taken a similar position to previous presidential administrations. Beckerman noted, for example, that Obama’s DOJ brief “was similar to the brief filed by the Bush DOJ.”

However, Fred von Lohmann, a staff attorney for the EFF, downplayed the significance of the brief.

“The DOJ is generally required to defend the constitutionality of duly enacted statutes passed by Congress, whatever the administration may think of the wisdom of the policies contained therein,” von Lohmann wrote in an email response. “So there is nothing new or special about them coming in to defend the constitutionality of statutory damages in copyright. It would be different if they were intervening to endorse a particular interpretation of a statute.”